The Hon. Mr Justice Nicol agreed privacy order in Johnny Depp/The Sun Newspaper libel trial allowing Amber Heard and another witness to give some evidence during the libel trial in private (with reporting restrictions)
The Hon. Mr Justice Nicol agreed privacy order in Johnny Depp/The Sun Newspaper libel trial allowing Amber Heard and another witness to give some evidence during the libel trial in private (with reporting restrictions)
By John Brace (Editor) and Leonora Brace (Co-Editor)
Royal Courts of Justice, London, UK (resized). Picture credit sjiong, made available under the CC BY-SA 2.0 licence.
Please note that comments are turned off due to the ongoing nature of this case.
There are two other report of hearings in the same case also published on this blog.
This is a report on a public hearing held on the 8rd April 2020 which started at 10.30 am in the High Court of Justice (Queen’s Bench Division) before the Hon. Mr Justice Nicol.
Wirral Council recommends councillors agree to advice that those who contact the press about complaints about councillors are “compromising their position”!
Cllr Denise Roberts (Chair, Standards and Constitutional Oversight Committee)
As some of the below relates to the press in general I am declaring an interest as that’s my paid occupation.
On Thursday evening starting at 5.00pm in Committee Room 3 in Wallasey Town Hall Wirral Council’s Standards and Constitutional Oversight Committee meets for a special public meeting.
Often the motivation at the past at Wirral Council with regards to late papers not sent out with the agenda/reports for the meeting are that it is a way for officers to really make sure something is "rubber-stamped" (and if you really want it rubber-stamped just hand out about two dozen pages of information at the meeting itself on the basis that those on the Committee won’t have time to read it before reaching a decision).
I’ve written an email below which explains my position (in the interests of openness and transparency it is below). I look forward to the meeting itself to see what is decided.
To: Cllr Denise Roberts (Chair)
Cllr Moira McLaughlin (Vice-Chair)
Cllr Ron Abbey
Cllr Brian Kenny
Cllr Paul Stuart c/o Shirley Hudspeth
Cllr Chris Blakeley
Cllr David Elderton
Cllr Gerry Ellis
Cllr Phil Gilchrist
Cllr Jean Stapleton
Cllr Eddie Boult
Professor Ronald Samuel Jones c/o Shirley Hudspeth
Brian Cummings c/o Shirley Hudspeth
Chris Jones c/o Shirley Hudspeth
Surjit Tour
Press Office (Wirral Council)
Dear all,
I do not have email contact details for the independent members on the Standards and Constitutional Oversight Committee and Cllr Paul Stuart and hope that Shirley Hudspeth can give them either a copy of this at the meeting itself, or may know their email addresses to forward them a copy of this email.
I know that two councillors (Cllr Brian Kenny and Cllr Gerry Ellis) are sending deputies and am sending a copy of this both to the councillor deputising and the councillor they are deputising for. If any other councillors are planning to send a deputy to the meeting feel free to forward this to the deputy.
This email is in relation to item 4 (Appointments of Panels) on the agenda of the Standards and Constitutional Oversight Committee meeting to be held on the 2nd June 2016.
The papers for this were published late and can be found in the supplementary agenda. Please note that in order for the committee to consider material published after the 5 clear working days before the meeting, it’s a legal requirement that both the Chair (presumably Cllr Denise Roberts) accepted this item of other business and the reasons for accepting it late are recorded in the minutes. I’m sure Mr. Tour will be familiar with this as it formed the basis last year as to my formal objection to the 2014/15 accounts of the Merseyside Pension Fund (administered by Wirral Council) with the result being that the Pensions Committee had to arrange a further meeting to properly approve the accounts.
However, I have some general questions/queries. In the interests of openness/transparency I’m publishing this email, so it’s not confidential.
1) As the people proposed to be on the Standards Panel & Standards Appeal Panel are also members of the Standards and Constitutional Oversight Committee are both panels being categorised by Wirral Council as a sub-committee, similar to how the Licensing Act Sub-Committee members are also drawn from its parent committee?
2) In the proposed protocol it states,
“12.5 Anyone involved with the investigation will be advised that they may be compromising their position if they communicate with the media on matters relevant to the investigation whilst the investigation is ongoing and that any communication that is made should emanate from the Council’s communication team.”
The legal requirement for secrecy of those involved with the investigation of complaints about councillors was repealed some time ago. Because of s.6 of the Human Rights Act 1998 a public authority (such as Wirral Council) can’t make a decision which causes it to act in a way incompatible with a Convention right. This suggestion in the protocol would seem to conflict with both the Article 10 (freedom of expression) Convention right and the whistleblowing provisions in the Public Interest Disclosure Act 1998. I would therefore either like a detailed explanation as why this is proposed (or why I am wrong) or for it to be removed from the proposed policy before it is agreed.
3) Part 21.1 of the proposed policy refers to “7C of the Council Access to Information Procedure Rules”.
This refers to the following reason for excluding the press/public at a meeting:
“7C. Information presented to a standards committee, or to a sub-committee of a standards committee, set up to consider any matter under regulations 13 or 16 to 20 of the Standards Committee (England) Regulations 2008, or referred under section 58(1)(c) of the Local Government Act 2000.”
A local council can only use powers it legally has to do something. Standards complaints about councillors are no longer considered under s.58(1)(c) of the Local Government Act 2000 (which was repealed) or the Standards Committee (England) Regulations 2008.
Therefore the references to a repealed legal power need to be brought up to date to the current position and Wirral Council’s constitution updated to prevent confusion.
I plan to attend the meeting itself and look forward to hearing an answer to this email then.
Yours sincerely,
—
John Brace
Editor http://johnbrace.com/
A blog about Wirral Council’s public meetings, Wirral Council’s councillors, Bidston & St. James ward and other public bodies on Merseyside
If you click on any of the buttons below, you’ll be doing me a favour by sharing this article with other people.
Liverpool City Region Combined Authority Audit Committee 26th January 2016
Below is an email I’ve just written about what happened today. I look forward to reading your comments on it. If I had faith in the whistleblowing procedures at Merseytravel I would not see the need to publish it, however these remarks do not inspire me with confidence. I realise I tend to get a bit verbose
“Ian Warwick (KPMG)” <ian.warwick@kpmg.co.uk>,
“Richard Tyler (KPMG)” <Richard.tyler@kpmg.co.uk>,
“Karen Christie (Knowsley press office)” <Karen.Chritie@knowsley.gov.uk>,
“Liam Robinson (Chair, Merseytravel)” <liam.robinson@liverpool.gov.uk>,
“Cllr Steve Foulkes (Merseytravel)” <stevefoulkes@wirral.gov.uk>,
“Cllr Jerry Williams (Merseytravel)” <jerrywilliams@wirral.gov.uk>,
“Cllr Ron Abbey (Merseytravel)” <ronabbey@wirral.gov.uk>,
“Cllr Les Rowlands (Merseytravel)” <lesrowlands@wirral.gov.uk>
Subject: protected disclosure (Public Interest Disclosure Act 1998)ED 18th February 2016: Although I originally thought I fell within the definition of worker in this legislation it seems I do not.
Dear all,
I am making this protected disclosure to Merseytravel, the Liverpool City Region Combined Authority and Knowsley Metropolitan Borough Council and KPMG.
Basically I am blowing the whistle and as I have little confidence in these matters being taken seriously by the public sector or addressed in a satisfactory manner I am also taking the step of publishing these concerns.
Obviously there are other routes I can go down other than this, but I hope this will resolve matters.
From this part onwards I will number the sections for ease of reference in replies to this communication.
1. Introduction
I am a member of the press called Mr. John Brace. Part of my job is covering public meetings of the Liverpool City Region Combined Authority. For clarity I am both a member of the broadcast media (as I film such meetings) and new media as I write online about these meetings. I write online at http://johnbrace.com/ , which last month (December 2015) had an audience of around 3,345 readers. I publish the video I record on the Youtube channel at https://www.youtube.com/user/level80 which in December 2015 was viewed for a total of ~87 hours.
2. Openness of Local Government Bodies Regulations 2014
On the 6th August 2014 a piece of legislation called the Openness of Local Government Bodies Regulations 2014 came into effect. These can be read at http://www.legislation.gov.uk/uksi/2014/2095/contents/made and I will briefly summarise some of the main changes it made relevant to this protected disclosure:
a) it changed the existing legislation to place a positive duty on certain public bodies that now had to allow filming at their public meetings (regulation 4(5)),
b) it changed the existing legislation to make it clear that such recordings of public meetings could be published (explicitly mentioning the internet) (regulation 4(5)),
and
c) Please note in order to allay any confusion in what I am about to quote, I will point out that s.100J of the Local Government Act 1972 (which defines various terms used in Part VA means that “principal council” includes a combined authority.
This is a quote from regulation 4(5) which modifies the Local Government Act 1972.
“A person attending a meeting of a principal council in England for the purpose of reporting on the meeting must, so far as practicable, be afforded reasonable facilities for doing so.”
3. 26th January 2016 On the morning of the 26th January 2016 I attended the Merseytravel Offices which are at No 1 Mann Island, Liverpool, L3 1BP. For the purposes of brevity I will refer to this location as Merseytravel HQ.
This was to attend and report on a public meeting of the Liverpool City Region Combined Authority Audit Committee which was scheduled to start at 10.30am. I was there with my wife and colleague Leonora Brace.
There was also at least one other member of the public present during the meeting called Ian Warwick, who works for the external auditors KPMG to the Liverpool City Region Combined Authority.
4. What happened
We arrived at the ground floor of Merseytravel at approximately 10 am.
The meeting was to be held on the first floor of Merseytravel HQ (in a room called the Authority Room).
We were told by the receptionist (I have a recording of this conversation on tape which can be supplied) that we would not be permitted to go through the barrier to this meeting (which started at 10.30am), until 10.45am.
Obviously had we taken her assertion at face value (and it causes a certain degree of work place stress to have to continually fact check what a public sector employee states to us) this would have been a breach of our rights to attend the public meeting and report on the public meeting.
There have been times in the past at Merseytravel HQ when we have arrived in plenty of time before a meeting has been to start.
However to give an example of what happened once, we had been kept waiting and not permitted to go to the room where the meeting is held until well after the meeting had started (by the time we were allowed to attend it was from memory had started thirty minutes before). It then causes us embarrassment to arrive late to a meeting when we had indeed on that occasion arrived in plenty of time. It made it impossible then for example to report on agenda items that had already happened.
Public meetings start at different times. For example these are the start times of public meetings held at Merseytravel HQ this month (I include the cancelled Combined Authority meeting scheduled for the 22nd January 2016 too):
There are other public meetings held in Merseytravel HQ too such as the Merseyside Waste Disposal Authority (also known as the Merseyside Recycling and Waste Authority) which start at 1.00pm.
Invariably due to the confusion caused by the receptionist stating that we wouldn’t be able to go into the meeting until 10.45, I had to double-check the time of the meeting using the guest wi-fi.
I found out that the meeting was supposed to start at 10.30am. The receptionist was therefore wrong in her assertion that we should not be allowed in until 10.45am.
I also took the opportunity to read the Combined Authority’s policy on filming.
The Monitoring Officer for the Combined Authority is Angela Sanderson. She does not work for Merseytravel, but for St Helens Borough Council.
The agreed filming policy for the Combined Authority meetings (which presumably covers meetings of its Audit Committee) is based on that originally adopted by Knowsley Metropolitan Borough Council. It was agreed on the 22nd September 2014.
In that policy the phone number of 0151 443 3536 (the press office of Knowsley Metropolitan Borough Council) is given for enquiries.
However Knowsley Metropolitan Borough Council have (as far as I know) no part in the public meeting of the Liverpool City Combined Authority Audit Committee of the 26th January 2016.
The papers for the meeting are published on Merseytravel’s website, see http://moderngov.merseytravel.uk.net/ieListDocuments.aspx?CId=336&MId=1343 and the minutes are taken by a Merseytravel employee.
Here is a transcript of part of my conversation I had with the receptionist (who seems a textbook example of the doctrine of “superior orders”) to the extent below:
John Brace: This is the filming policy they use here, it’s the Knowsley Council one they use because they’re the ones that administer the Combined Authority and it says,
“Anyone wishing to do so is asked to inform them in advance to ensure any necessary arrangements can be made.”
So does that mean you need to ring the press office here or Knowsley?
Denise (who has a phone on her desk) (Merseytravel employee): No, they’ve given me instructions not to let any members of the public in there.
John Brace: No what I’m saying is your filming policy …
Denise (who has a phone on her desk) (Merseytravel employee): up until 15 minutes before until someone else is in that room.
John Brace: Sorry this is something different. Your filming policy says you request to be informed in advance of the meeting, so that’s what I’m doing.
Denise (who has a phone on her desk) (Merseytravel employee): Yeah, yeah.
John Brace: So what I’m saying is, it says media enquiries to be conducted to the Communications Team, does that mean
Denise (who has a phone on her desk) (Merseytravel employee): There you go, there’s Louise.
5. The conversation with Louise Outram
Before the public meeting started, myself and Leonora Brace had a conversation with Louise Outram (who as far as I know is the Monitoring Officer for Merseytravel) about these matters.
I will point out at this stage that this is not the first conversation I have had with Louise Outram about these issues.
Louise Outram: OK, Mr & Mrs Brace, can I take over here please?
Louise Outram: What’s the problem this morning?
John Brace: Well, the filming policy does say you require advance notice, so I was just asking whether that goes, because the policy was Knowsley’s policy so I’m not sure whether that phone number is Knowsley’s press office or your press office?
Louise Outram: Err, that looks like Knowsley’s number.
John Brace: Ahh, OK.
Louise Outram: Well I think it’s been accepted that you will film. We don’t have a problem with that. We can’t gain access to the building until there’s a committee officer within that room.
Leonora Brace: Yeah, but surely we can go upstairs and sit outside?
Louise Outram: No, you can’t. It’s a public, this is the public area and the meeting is a public meeting and we will afford you the reasonable facility to film.
Fifteen minutes before the meeting gives you sufficient time to set up your camera and at fifteen minutes before the meeting there’ll be a democratic services officer in that room.
We cannot allow the public unrestricted access to this building. We’ve got private tenants and public offices.
John Brace: Well we’ve seen plenty of members of the public go through when we’ve just been here in this short period for instance there’s one of your auditors from KPMG that doesn’t actually work for Merseytravel has gone through. You know other people have gone through into what you term as a non-public area. So,
Louise Outram: They, those officers have a legitimate meeting in this building. You have a right to the public meeting. The public meeting doesn’t start until 10.30, it’s only 10 o’clock now.
John Brace: You said 10.30, is that
Louise Outram: Yes.
John Brace: correct? I’ll just check on that, because I thought the time was different on the website, Louise Outram and Leonora Brace: No, it’s 10.30.
John Brace: If you look here I’ll just show you, oh yes it says 10.30. Sorry I’m thinking of another one that starts at 11.15,
Louise Outram: They’re all different times unfortunately, so it is important to check the time.
(a number of people speak at once)
Louise Outram: Yes, as soon as a Committee Officer, a Democratic Services Officer is in that room, they’ll advise Denise and Denise will allow you access up to that room to set up your camera, in the place that you normally set it up.
John Brace: The only other thing is that Leonora was saying is she’s a ********. The problem with sitting here opening and closing a lot it does get quite cold and draughty down here.
Louise Outram: Well I’m afraid we can’t do anything about that. The door has to open and close. I mean all I would suggest is that you arrive at 10.15 or fifteen minutes before whatever meeting time is scheduled and in doing that you will then be afforded the facility to come through.
John Brace: Well today for instance, as you know there’s bad weather and disruption to the transport network so it’s only advisable to leave a bit of extra time.
Louise Outram: Well I can’t allow you into the room until there’s a democratic services officer. Denise will advise you when that is. So if you’d like to sit, you’re more than welcome to sit here.
If you’d like to walk around the block, you’re more than welcome to do, but they’ll allow you in fifteen minutes before the meeting starts. OK, alright? I’ll notify Democratic Services that you’re filming again today. We do generally take it as read that you are afforded facilities to do that, so, we’ll, that’s not a problem, ok?
John Brace: Well another question I want to ask is, it states err “reasonable facilities” in the regulations, but it doesn’t actually state what they are so, is there some kind of understanding between us as to what they are or what?
Louise Outram: You come in, you are there are seats available, you generally set your tripod up,you generally move it around as in the camera around, so
John Brace: Sorry receipts?
Louise Outram: There are seats available for the public and you generally.
John Brace: Sorry I thought you said receipts.
Louise Outram: No,
(laughter)
John Brace: It’s the echoes in here isn’t it?
Louise Outram: No, you generally sit yourself in a particular position which affords you a good view of the, I mean I’ve seen your films, you know it affords you a good view of the Chamber and people are reminded to use their microphones, so we do try and ensure you get a good video of the meeting.
So I think we afford you reasonable if not very good facilities!
(laughter)
Louise Outram: The legislation unfortunately doesn’t describe anything formal but, and it doesn’t give any guidance as well, so I would say we (unclear)
I think so, I think you’re getting yourself a good spec.
Leonora Brace: It’s nearly ten past now!
Louise Outram: Well the Democratic Services officer will notify Denise and she’ll allow you access through.
John Brace: But it’s not Denise’s decision?
Louise Outram: She’s acting on instructions from ourselves.
John Brace: Oh I was trying to explain to Leonora, that she was getting instructions from above, it’s not her decision to make.
Louise Outram: It’s not Denise! (laughter)
John Brace: Does that help at all or not?
Leonora Brace: No.
6. Conclusion
There are many issues this raises.
For example the public sector equality duty (which was ironically raised by Cllr Pam Thomas at the meeting we were at). .
For example the area Louise Outram insists we wait in has no access to water or toilets.
This discriminates against two people with protected characteristics as Merseytravel is fully aware why we would require greater access to these than others.
To give one example, the pollution found in Liverpool City Centre, where Merseytravel HQ is based makes me thirsty because I’m an asthmatic.
Merseytravel is fully aware of the disability I have and the nature and extent of those disabilites as a District Judge at Birkenhead County Court found in the past that Merseytravel had discriminated against me three times (but accepted Merseytravel’s defence that on each occasion it was a proportionate means of achieving a legitimate aim).
One could regard denying me access to water in such circumstances as degrading treatment contrary to Article 3.
Are we expected to bring our own water to such meetings?
Article 2 deals with freedom of movement which is again restricted.
It is unlawful for a public authority to act in a way this is incompatible with a Convention Right (s. 6(1) of the Human Rights Act 1998).
Merseytravel states that it prides itself on good industrial relations with its workforce. We both work in Merseytravel HQ, yet not for Merseytravel. Yet Merseytravel management unilaterally imposed this new policy upon us without formally consulting us first.
I hope I will receive a satisfactory response to the issues raised. Not just for my benefit, but for that of Leonora, other members of the media who attend public meetings at Merseytravel HQ and indeed the wider public who may wish to do so.
Long drawn out legal cases are neither beneficial to either Merseytravel or myself, adverse press criticism is about the only tool I have to bring about change.
Merseytravel is part of the public sector and should be able to resolve this issues well before they get to this stage.
I would hope that after having read the above that matters will change.
However realising how difficult cultural attitudes are to change in an organisation, I am not hopeful of a quick resolution to these matters.
I can be contacted in the following ways:
Address: Jenmaleo, 134 Boundary Road, Birkenhead, CH43 7PH
Email: john@johnbrace.com
Tel: 0151 512 2500 (but please not that due to the nature of my work you are highly likely to just get the answering machine)
P.S. Last year I heard Mayor Anderson (now Chair of the Combined Authority) state at a public meeting how hurt he was when decisions affecting his employment with Chesterfield School were made without prior consultation and about his political beliefs as a trade unionist.
If Merseytravel have behaved in the way I describe above (which I have the tape to prove), then management is not acting in accordance with the political belief of the Chair of the Combined Authority who is answerable to the public for its functioning.
I would also like it confirmed (as three senior managers at Merseytravel, Stephanie Donaldson, Liz Carridge and Louise Outram) were involved in trying to persuade me to alter the article here:
EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake
EXCLUSIVE: Wirral Council admit disclosure of NI numbers, dates of birth & names of nearly 200 staff was a mistake
Surjit Tour (left) at a recent meeting of Wirral Council’s Standards and Constitutional Oversight Committee
The background to this story is that last year Wirral Council accidentally divulged to me around two hundred people’s names, dates of birth, national insurance numbers, job titles and whether they were in the Merseyside Pension Fund (that Wirral Council administers) or not.
This is my response to Wirral Council (and ICO on this matter).
Dear Surjit Tour, Caroline Flint (ICO) and others,
Thank you Mr. Tour for your letter of 28th April 2015 (your reference ST/CG) and the email from ICO’s Caroline Flint dated 30th April 2015 (ICO case reference number RFA0568370). As both communications cover the same topic I am writing this joint response in reply.
I will deal first with an error in the response in the email from ICO. The first sentence in that email states “Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.”
None of the personal data that this matter relates to is about myself.
Moving to Mr. Tour’s letter of the 28th April 2015, paragraph 2 correctly states that I requested “eight lengthy contracts/leases” (one of which is the PFI contract with Wirral Schools Services Limited that this matter relates to).
Although not implicitly stated, it is implied that I was provided with eight lengthy contracts/leases and that this request “did impose a considerable strain on the officers”.
However four were not provided (the BAM Nuttall contract came into effect during the 2014/15 financial year, the development agreement (dated 9/1/2008) and bond (dated 6/10/2008) with Pochin Land and Development Limited (relating to the Birkenhead ASDA Compulsory Purchase Order) was refused and so was Wirral Council’s agreement with Neptune Developments with regards to the Birkenhead Masterplan proposals).
Two leases were provided (I would estimate each at being around 200 pages long). Two contracts were also provided (including the PFI contract) which are each around 500-1000 pages long. In the case of one of the leases (the New Brighton Marine Point lease) two entire copies of the lease were provided (when I only asked for one). As one of the two copies provided of that lease has a Land Registry official copy stamp on it (so presumably the copying was done by Land Registry) I would respectfully point out that the “considerable strain on the officers” referred to in your letter in making a second copy of that lease (then providing a second copy of that lease to myself with the Land Registry copy) was unnecessary.
In the last sentence of your letter you refer to Regulation 9 of the Accounts and Audit (England) Regulations 2011 which requires the documents to be made available for public inspection twenty working days before the date appointed by the auditor for local government electors to exercise their rights to either ask questions or make an objection.
For the 2013/14 audit, this date was the 18th August 2014. Therefore in order to comply with the regulations the documents should have been made available in the twenty working days leading up to the 18th August 2014 (which was the 21st July 2014 to the 15th August 2014).
As specified in your letter the PFI contract was available for inspection by myself on the 12th September 2014 (a month later than the timescale in the legislation you refer to). The copy of the PFI contract I was given on the 12th September 2014 was incomplete and it was the following month before I received the missing pages of the contract (which was after the accounts for that year had been closed by the auditor).
There were similar problems with the member expense forms as those given to me in September 2014 were also incomplete (or related to the wrong financial year) with the rest given to me in October 2014.
Therefore as the information was provided a month (or in some cases two months) later than the legislation specified I dispute your assertion that “The difficulties were compounded by the short timescales permitted by Regulation 9 of the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council”.
Had the documents been open for inspection and I had received copies prior to the 18th August 2014 (in compliance with the regulation you refer to) I would agree with you, however they were not.
I refer you to one of the admission agreements in the PFI contract specifically Schedule 19, Part 3, page 4/5 of the PFI Contract:
“3 (i) The Administering Authority shall from the date referred to in paragraph (ii) of this clause admit to participate in the benefits of the Scheme every employee of the Transferee Admission Body –
(a) whose name appears in the List annexed to this Agreement where he is identified as being a member of the Scheme by virtue of being an employee of the Administering Authority (hereinafter referred to as “the List”) or
(b) whom, by notice in writing given to the Administering Authority, the Transferee Admission Body may from time to time nominate provided that any person so nominated must be eligible to become a member of the Scheme.”
The Administering Authority referred to is Wirral Council. Therefore the list of names, dates of birth, job descriptions, NI numbers is of former Wirral Council staff whose employer was changed from Wirral Council to that of the PFI contractor.
You state in the second paragraph on page 3 “The amount of any such deficit would be determined by such factors as salary and age of the employee”. However the list does not include salary details of employees. Therefore as this information does not form part of the admission agreement or annexed list I dispute your statement that “That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.”
I might also point out that the admission agreement refers to a bond or indemnity with an insurer (Schedule 18 Parts 3 pages 14-17) to cover this sort of situation which reduces the risk of such liabilities falling on Wirral Council. Unfortunately the name of the insurer is not provided on the copy of the contract I have but the admission agreement states this insurance is to a limit of £67,000 (for that admission agreement which is one of three in the contract).
As I am publishing this response to ICO and Mr. Tour, I am also publishing the email from ICO that it refers to and the letter from Mr. Tour.
I have made a determination as data controller (see s.32 of the Data Protection Act 1998) that having regard to the special importance of the public interest in freedom of expression, the fact that I’m publishing my response (which could lead to confusion unless the email from ICO and letter from Wirral Council is also published at the same time), ICO’s view that Wirral Council breached the Data Protection Act 1998 as well as other reasons, that it is in the public interest for these documents to be published.
Finally, although I appreciate your point about whether s.34 of the Data Protection Act 1998 applies to the list is a matter for Wirral Council and ICO to come to a view on, at the very least there appears (from my perspective) to have been maladministration on the part of Wirral Council.
Providing documents requested during the audit outside the timescales you referred to in your letter and indeed in some cases after the accounts were closed prevented me from exercising my right to object to the auditor or to ask questions of the auditor before the accounts were closed at the end of September 2014.
As you are Monitoring Officer for Wirral Council, I draw your attention to section 5A of the Local Government and Housing Act 1989 and the duty of a Monitoring Officer to write a report (circulated to all councillors, the Chief Executive and the Chief Financial Officer) and for this report to be considered at a future Cabinet meeting within a set time period if there has either been a contravention of any enactment or rule of law by the authority or maladministration. I therefore await your response as to whether you will be writing such a report.
from: casework@ico.org.uk
to: john.brace@gmail.com
date: 30 April 2015 at 15:42
subject: Data Protection Concern: RFA0568370[Ref. RFA0568370]
30 April 2015
Case Reference Number RFA0568370
Dear Mr Brace
Thank you for raising your concern with us about Wirral Metropolitan Borough Council’s (Wirral MBC’s) handling of your personal data.
We want to know how organisations are doing when they are handling information rights issues. We also want to improve the way they deal with the personal information they are responsible for. Reporting your concerns to us will help us do that.
Our role is not to investigate or adjudicate on individual concerns but we will consider whether there is an opportunity to improve the practice of the organisations we regulate. We do this by taking an overview of all concerns that are raised about an organisation with a view to improving their compliance with the Data Protection Act 1998 (DPA).
From the information provided to us it does appear that Wirral Council has breached the DPA as it has acknowledged disclosing third party data in error. Wirral MBC has stated they have recovered the information disclosed inappropriately. They have also specified that requests made under the Audit Act in the future should not include any personal information which would enable particular individuals to be identified unless the requester can demonstrate that the disclosure is in the public interest to the extent that it should override the individual’s right to privacy.
It is now Wirral Metropolitan Borough Council’s responsibility to explain to us how it intends to improve its information rights practices in relation to reducing the possibility of such inappropriate disclosures in the future. Although we do not intend to write to you again, we will keep the concerns raised on file. This will help us over time to build up a picture of Wirral MBC’s information rights practices.
Thank you for bringing this matter to our attention.
If you are dissatisfied with the service you have received, or would like to provide us with feedback of any kind, please let me know. Further information can also be found on our website by following the following link https://ico.org.uk/concerns/complaints-and-compliments-about-us/complain-about-us/
Yours sincerely
Caroline Flint
Case Officer
01625 545 258
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Department of Transformation and Resources
Joe Blott Strategic Director for Transformation
and Resources
Town Hall, Brighton Street
Wallasey, Wirral
Merseyside, CH44 8ED
DX 708630 Seacombe
Website: www.wirral.gov.uk
date 28 April 2015
to John Brace
Jenmaleo
134 Boundary Road
Bidston
Wirral
CH43 7PH
my ref ST/CG
service Legal and Member Services
tel 0151 691 8569
fax 0151 691 8482
email surjittour@wirral.gov.uk
Dear Mr Brace
DISCLOSURE OF PERSONAL INFORMATION IN ADMISSION AGREEMENT FORMING PART OF THE COUNCIL’S PFI CONTRACT
I refer to your letter of 19 January and to our subsequent meeting which culminated in your return of the personal information which was inadvertently disclosed to you when a copy of the PFI Contract was provided to you on 12 September 2014.
You will recall that in a written request dated 25 July 2014 you had exercised your right under Section 15 of the Audit Commission Act 1998 (“ACA”) to inspect and receive copies of over 300 invoices, eight lengthy contracts/leases and all member expense forms for 2013 and 2014. These documents related to the Council’s accounts for 2013/14.
The request for those documents did impose a considerable strain on the officers who were required to locate and copy those contracts after redacting commercially sensitive and personal information from those documents in accordance with the requirements of the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights. Article 8, as you may know, requires a public authority to show respect for a persons private life and not to interfere with that right except as is in accordance with the law and is necessary (amongst other things) in the interests of the economic wellbeing of the country or for the protection of the rights and freedoms of others.
I should emphasise that the non-redaction of the personal pension information was not intentional. The information was overlooked amongst the thousands of pages of the documentation which you had requested under Section 15 of the ACA. The difficulties were compounded by the short timescales permitted by Regulation 9 of
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the Accounts and Audit (England) 2011 to produce the documents you had requested that related to the accounts of the Council also by the sickness absence of one of the Council’s officers who was dealing with your request.
I have looked carefully into the legal consequences of the inadvertent disclosure of the personal information in the PFI Contract and have indeed taken Counsel’s advice on the matter. My conclusions are set out below.
Section 34 of the Data Protection Act 1998 contains an exemption from the requirement to comply with the non-disclosure provisions of the Act if any personal data consists of information which the Data Controller is obliged to make available to the public under any enactment.
The non-disclosure provisions are defined in Section 27 of the same Act and include the first data protection principle which requires Data Controllers to process personal data both fairly and lawfully.
If however the processing is necessary for compliance with any legal obligation to which the Data Controller is subject, then the requirement to process personal data fairly and lawfully does not apply.
The applicable legal obligation is Section 15 of the ACA which gives a right to any local government elector to inspect all contracts relating to the accounts which are to be audited. There is an exception for information which can identify a particular employee of the Council and also for personal information outside that description ie non-employees of the Council if the information enables a particular individual or individuals “to be identified and the Council’s Auditor considers that it should not be inspected or disclosed”.
In the particular circumstances of the PFI Contract the Auditor had not been requested to authorise non-disclosure. The volume of the documents running into several thousands of pages which you had requested rendered it simply impracticable within the short timescales to seek the Auditor’s opinion on whether the personal information should be disclosed. You must remember the context in which the personal information in the PFI Contract was inadvertently disclosed. It was one of many documents that had to be sifted for personal information and commercially sensitive information.
The advice I have received is that Section 15 of the ACA should be interpreted in such a way that the Auditor’s prior consent to non-disclosure is not required where it would be impracticable to obtain that consent eg because of the volume of documents required to be submitted to him in the short period of time allowed by the Legislation for production of contracts which relate to the Council’s accounts.
It does not of course follow that the Council’s duty not to interfere with Article 8 Rights of the individuals named in the Admission Agreement of the PFI Contract automatically overrides your right as a local government elector to see that information if it formed part of the contract which you were entitled to inspect.
2
There is a public interest that is to be considered which is that the local government elector or indeed a member of the public should normally enjoy full disclosure of information which is relevant to the Council’s true financial position and which would enable them possibly to detect any wrong doing by the Council or its employees.
In this regard I would draw your attention to Schedule 2 Part 3 paragraph 11 of the Local Government Pension Scheme Regulations 2013 which imposes an obligation on the Council to make a copy of an Admission Agreement available for public inspection at its offices. Details of the employees of the PFI Contractor who had been transferred to the contractors employment from the Council under the Transfer of Undertakings (Protection of Employment) Regulations are relevant to an assessment of the Council’s financial position. Under the Local Government Pension Scheme Regulations 2013 if a contractor were to default in his obligations to make pension contributions in respect of those employees or were to become insolvent, the Council would have to meet any deficit in the Pension Fund that arose as a result. The amount of any such deficit would be determined by such factors as salary and age of the employee. That information would therefore be relevant to any assessment of the financial risk to the Council brought about by the PFI Contract.
Furthermore such employees of the PFI contractor are only entitled to remain in the Local Government Pension Scheme if they continue to be employed in connection with the provision of the services comprised in the PFI Contract. Members of the public would need to know the identities of the contractors employees who were admitted to the Pension Scheme under the Admission Agreement in order to check whether they were continuing to work on the PFI Contract and therefore still entitled to remain in the Local Government Pension Scheme with the attendant financial risk to the Council and thereby council tax payers if the PFI contractor were to default in payment of pension contributions or become insolvent.
If therefore that personal information had been drawn to my attention l would have had to weigh in the balance the public interest in disclosing information relating to the Council’s financial position and the identity of employees who were only entitled to remain in the Pension Scheme whilst they remain employed on the PFI Contract, against the invasion of those members privacy if their identities, dates of birth, and national insurance numbers were made known to you.
I have to say that if I had been called upon to make that decision I would have redacted the personal information and not disclosed it to you unless you had been able to satisfy me that you required that information in circumstances which related to those aspects of the public interest to which l have referred above.
It is evident from the contents of your letter of 19 January and our subsequent meeting that you yourself do not believe that the public interest in disclosure of the identities of the members of the Pension Scheme in the PFI Contract was more potent than the respect which the Council is required to show for their privacy under Article 8. Your reasons for seeking disclosure of the PFI Contract had nothing to do with your concern over the Council’s financial exposure to potential deficits of PFI contractors in the Local Government Pension Scheme or to any concerns that the PFI employees who had been allowed to retain membership of the Local Government Pension Scheme were abusing that Scheme by retaining their membership when they were no longer working on the PFI Contract. You have acted responsibly by returning that personal information to me because you recognise that it did not serve the purpose you had in inspecting the PFI Contract in relation to the Council’s accounts for 2013/2014.
3
In future I propose to ensure that future requests to inspect documents under the ACA should not include any personal information which would enable the identity of particular individuals to be ascertained unless you (or any person wishing to inspect the accounts) can demonstrate that the disclosure of that information is in the public interest to the extent that it should override the individuals right to privacy.
Finally I should add that as from 1 April 2015 Section 15 of the Audit Commission Act 1998 has been replaced by Section 26 of the Local Audit and Accountability Act 2014. Under that Act there is no longer a requirement for the Council to seek the prior consent of the Auditor before withholding any personal information in the documents relating to the Council’s accounts which a local government elector is entitled to inspect. It is a recognition by Parliament that the prior involvement of the Auditor is not workable having regard to the short timescale for inspection of the documents and the often voluminous nature of those documents. There are however transitional provisions which mean that the 1998 Act will continue to apply to the inspection of accounts for the year 2014/15.
I am sending a copy of this letter to the Information Commissioner so that he is made fully aware of the Council’s investigation into your complaint and the complicated legal framework within which the Council has to work particularly when it is confronted by a request from the public to inspect a large volume of documents.
Yours sincerely and signed on behalf of Surjit Tour Head of Legal and Member Services
(signature of Jane Corrin)
Jane Corrin
Information and Central Service Manager
Transformation and Resources
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